Legal methods Flashcards
ADR Role
- Variety of different processes in which an impartial practitioner helps people to resolve their disputes
ADR positive
- Quicker, cheaper more flexible, less stressful, more confidential than courts
- Party retain control
- Encourage cooperation
- Rules of evidence do not apply
ADR negative
- Mediation + conciliation do not end in a legally binding decision
- Fear of violence, public interest
- Not always resolved; fail to attend, no genuine effort, unsuitable dispute
Tribunal role
- Resolves dispute through legally enforceable orderis in relation to civil matters, such as tenancy disputes
- NSW Civil Admin Tribunal (NCAT)
- Conduct administrative review ( review the merits of a decision )
Tribunal positive
- Legally enforceable decision – ends conflict – finality, certainty
- Faster, less formal, less costly than court
- Rules of evidence do not apply
Tribunal negative
- Parties lose control over outcome ( unlike mediation )
- Limited jurisdiction – can only make decisions on specific areas of law
Courts role
- Interpret and enforce the law resolving disputes through legally enforceable orders
- Courts carry out judicial review ( a review of the legality of the decision )
Courts positive
- Legally enforceable decision – ends conflict – finality and certainty
- Ensures government decisions are lawful – upholds separation of powers
- Strict rules of evidence apply – fair, reliable
- Court system as a whole as unlimited jurisdiction
Courts negative
- Lengthy, formal, expensive- less accessible
- Takes control away from parties – heighten conflict + polarise parties
Ombudsman statute
- Ombudsman act 1974 (NSW)
- Ombudsman Act 1976 (Cth)
Ombudsman role
- Investigate complaints against government
- Makes recommendations to improve unfair government conduct
Ombudsman positive
- Its recommendations are often adopted, leading to fairer gov. conduct
- Free service – helps access to law
- Investigations attract publicity – exert pressure on gov. to change
Ombudsman negative
- Cannot force the government to adopt its recommendations
- Cannot directly change law
Australian Human Rights Commission statute
- Australian Human Rights Commission Act 1986 (Cth)
Australian human rights commission role
- Investigates and conciliates complaints of discrimination
- Holds inquiries into HR issues and makes recommendations to govt
- Educates people about HR
Australian human rights commission positive
- Its recommendations are often adopted – law reform to improve HR protections
- Investigations attract publicity – exert pressure on govt to change
- Conciliations helps parties to resolve disputes through cooperation, also cheaper and faster than courts
Australian human rights commission negative
- Cannot force the govt to adopt its recommendations
- Cannot directly change laws
- Conciliation does not always reach an agreement
Independent commission against corruption statute
- ICAC Act 1988 (NSW)
Independent commission against corruption role
- Investigates alleged corruption in govt e.g. Bribery, fraud, theft
Independent commission against corruption positive
- Wide investigative powers e.g. Interrogation, search and seize
- Can report findings of corruption to parliament and recommend action, investigations can lead to criminal prosecution by DPP (Director of Public Prosecutions)
Independent commission against corruption negative
- Does not have power to prosecute offenders
- Does not have power to directly change laws
royal commissions statute
- Royal Commissions Act 1902
royal commissions role
- Investigate matters of public importance
- Make recommendations to govt to improve laws
royal commissions positive
- Recommendations are sometimes adopted – law reform
- Investigations attract publicity – exert pressure on govt to change
- Many resources
- High profile
